Nov. 10, 2017, witnessed a gross and unconscionable abuse of power by the chief justice of India, justice Dipak Misra, unparalleled in the history of the supreme court of India. As other commentators have pointed out (here, here, here, and here) it is, if not the lowest, then certainly one of the lowest points in the history of an institution that ordinary citizens of India look up to. The credibility of the institution, built up over several decades and already under stress in the last few years, crumbled in two hours of high drama. It is important to remember how we got here, why the chief justice of India’s actions are so unpardonable, and why things may never be the same again.

Sequence of events

The immediate sequence of events leading up to the events of Nov. 10, 2017, are detailed here, but some more background is needed to understand it fully. The story really starts with the Central Bureau of Investigation’s (CBI) arrest of a hawala operator who led them eventually to a retired judge of the Orissa high court, IM Quddusi, who, it was claimed, had taken money from a medical college with a promise to help them get a favourable judgement from the supreme court on the question of permissions to admit students for the 2017-18 academic year from the Medical Council of India.

The Campaign for Judicial Accountability and Reforms led by Prashant Bhushan and, later, Kamini Jaiswal, filed a petition asking for a supreme court monitored supervision of this ongoing investigation into possible judicial corruption. On Thursday, a bench led by justice J Chelameswar directed that a constitution bench be formed of five senior-most judges to deal with Jaiswal’s petition. The order said that the bench should consist of the five senior-most judges of the supreme court. But on Friday, this order was nullified by a fresh constitution bench led by Misra and a new bench set up by him.

The medical college in question, run by Prasad Education Trust, had approached the supreme court earlier this year in a case which was heard by a bench of Misra, justice Amitava Roy, and justice AM Khanwilkar. It cannot be missed that both justices Roy and Khanwilkar were also on the “constitution bench” that Misra set up on Friday.

It is true that the names of Misra or his two colleagues on the bench are not mentioned in the first information report (FIR) filed by the CBI. But we must remember that according to the judgement of the supreme court of No complaint can be made against a supreme court judge without the written permission of the CJI.India in K Veeraswami vs Union of India, no complaint can be made against a judge of the supreme court without the written permission of the chief justice of India, and if the complaint is about the chief justice of India, then permission has to be obtained from such judge or judges of the supreme court as the union government sees fit. The CBI thus could not, by itself, have named any supreme court judge in the FIR, without the government taking the requisite permissions.

The alleged offence of bribery of a public official does not actually name a specific public official yet. The investigations have not made any progress on the involvement of any sitting supreme court judge yet. It is public knowledge that the writ petition filed by the other accused, for permission, was heard by Misra, Roy, and Khanwilkar on July 26, and an order was passed on Aug. 01 asking for a fresh decision to be taken regarding permission denied to petitioner colleges. Crucially, it was heard as part of a batch of matters challenging decisions of the union government and the committee overseeing the functioning of the Medical Council of India in respect to permission given to medical colleges.

The obvious questions arise: Would it not be the most logical thing to do to include the above judges in the ongoing investigation, after going through the proper procedures? Does this not warrant an inquiry into the functioning of the supreme court? Is it not reasonable to investigate if the alleged bribery in the Prasad Education Trust case was a one-off or could there be more such cases? Would it not have been advisable for Misra to have welcomed such a probe as it would have once and for all cleared all controversy?

These questions have no answers, and thanks to Misra’s actions on Friday, the truth looks further away than ever.

While Chelameswar’s orders for the early listing of the petitions by CJAR and Kamini Jaiswal and reference to the Constitution Bench of five senior-most judges were debatable, they did not per se cause any prejudice to anyone, and may have been warranted to ensure that justice was not only done but seen to be done.